Category: 
June 29, 2007Interesting news today – the European Court of Human Rights has, today, passed judgement by 15-2 striking out the British pairs claim.
Judges acknowledged that both men had faced compulsion to provide information, but threw out their claim that the right to remain silent and the right not to incriminate oneself are “absolute rights”.
Their judgement noted that people “who choose to keep and drive cars” have implicitly “accepted certain responsibilities” under UK law.
This includes an obligation to name the driver of a vehicle after a road traffic offence has been committed.
The judges also pointed out that UK law made it clear that no offence has been committed if a car owner can prove that he or she did not know, and could not be expected to know, who was driving the vehicle.
Mr Francis said after the verdict: “The fight for freedom goes on. We can’t allow the tyrants, who are taking away our rights, to succeed. They have to be stopped.”
You can read the full legal judgement here
This passage by Judge Pavlovschi is of notable interest.
If the public interest in catching minor offenders (persons committing speeding or parking offences) is so great as to justify limitations on the privilege against self-incrimination, what would be the position when the issue concerned serious offences? Is the public interest in catching those who commit crimes which cost people’s lives less great than in catching those who slightly exceed the speed limit?
In my view it is illogical for persons who have committed minor offences to find themselves in a less favourable situation than those who have committed acts which are truly dangerous to society.
Horaayy..there are 6 comment(s) for me so far ;)
The right to not self-incriminate originates in a desire to avoid people being led into confessing to crimes they didn’t commit by abuse of their ignorance of the law and the light in which what they say could be construed, by someone with skills in persuasion and misleading others. How does compelling car owners to say who was driving a car at a specific incident meet those criteria?
Robbie Bow has invented his own criteria. The right to silence as provided for in any of the constitutional documents that I know of, e.g. Magna Carta, is totally unconditional and, as British subjects, is our title property. Not just a right – everybody please understand – it is our property. Nobody is permitted to change the wording, or to apply conditions to the wording. Society may have changed, but the wording cannot be changed.
I’ve invented nothing. I’ve pointed out the philosophical origins of this particular right. Whether or not that right has been altered, rescinded, upheld or eroded does not change the original intent of that right.
And clearly the extent and conditions can and have been changed: the cases above show that. Myriad other cases show that also. Rights are not immutable laws of physics; they are man made. Whether or not they *should* be changed is another matter. Just as a compulsory purchase order can take away land in which you have title without your consent, the supreme sovereign powers (parliament and the EU) that be can take away your other property and title. They wouldn’t be supreme sovereign powers otherwise. Whether or not they *should* do so is another matter and whether or not you can successfully resist them doing is, again, another matter. Even the US constitution – a document that is more clearly adhered to than anything we have – can and has been changed, rescinding some rights, adding others, in the past.
What I am interested in is how the case of vehicle owners having to tell the police who was driving their vehicle at the scene of an incident – a very specific and narrow amount of information – is the sort of thing that could be used to trick an innocent into incriminating themselves. That is what the right to silence is intended to protect us from. It is not intended to protect people guilty of offences from conviction.
Robbie Bow writes “the right to silence is …. not intended to protect people guilty of offences from conviction.â€
Nobody ever said that it was.
The right to silence was intended to protect the accused from being forced to confess to the offence of which they stand accused.
Whether they are guilty or innocent is irrelevant. Why?
Because we don’t know whether they are guilty or innocent until a court or a jury delivers a verdict.
This is the fundamental flaw in Robbie Bow’s thinking – it prejudges the case.
Pursuant to the protection afforded by the right to silence, the onus of proof lies solely with the prosecution, not with the defence. The defence cannot be required to make the prosecution’s case for it. The prosecution must bring their own independent evidence in order to prove their case.
Some of us seem to find it difficult to face an unpalatable truth. The right to silence protects the guilty just the same as it protects the innocent. It has to be this way. If it were otherwise, there would be no need for a trial; the accused could simply be pronounced guilty.
The right to silence protects both the guilty and the innocent from abuse by a prosecutor.
In speed camera cases, the police can bring their own evidence of a vehicle photographed breaking a speed limit. No problem. They cannot, however, bring their own independent evidence regarding the identity of the driver. The only way they have of naming the driver is to force the driver to name themselves and, accordingly, Section 172 of the Road Traffic Act 1988 makes it a criminal offence to refuse to name the driver.
Therefore, Section 172 does not seek to “trick†a driver into incriminating themselves – it makes it a criminal offence to refuse to incriminate oneself.
This is illegal, unconstitutional, and at some point it will have to fall.
Shame on those European judges who endorsed this illegality.
The unpalatable truth, Fred, is many fold:
First, the right to silence is intended as a means to protect the innocent, not the guilty. In order to apply it such that all innocent people benefit from it it must be granted to all accused parties. Now this seems to be something you’re confusing: the principle and its application, which are two different things. Indignant rage by guilty parties at having to declare specific facts in specific circumstances is hollow filibuster.
Second, the Magna Carta has almost all been repealed, and the rights it conferred were almost exclusively for the nobility and the Church; not plebs like you and me. Of the three clauses that remain intact, clause 39 is the only one that bears anything on our rights apropos our treatment by the state and that clause gives us the right to a fair trial by our peers. The Magna Carta never gave us the right to silence[1].
Third, the European Convention on Human Rights, like the Magna Carta, never gave us the right to silence. It, like the Magna Carta, gave us the right to a fair trial[2].
Fourth, every court so far as ruled Section 172 to be legal and constitutional.
I\’ve had my fair share of points for speeding. It’s an arse but the law is clear, the road signs were there, I was going too fast and I got caught. Build a bridge, get over it.
[1] http://www.britannia.com/history/docs/magna2.html
[2] http://www.hri.org/docs/ECHR50.html
Robbie Bow is wrong at least in this respect – the Scottish High Court upheld the RTS, it was the Privy Council, effectively the Appeal Court for Scotland, and then the ECHR which (infamously) abandoned the RTS. In May 2008 however the Hong Kong UPHELD the RTS and RUBBISHED the ECHR judgement, fully supporting the Polish judge\’s dissenting view
More details from irfrancis@onetel.com
I was of course one of the two applicants to the ECHR